Musing about law, books, and politics

Proud to be an Institutionalist

This is what a real witch hunt looks like:

It’s also how the GOP hopes to play “whatabout,” undermine the Mueller probe, and attack and undermine democratic institutions. 

Remember all those years of Whitewater, Bengahzi, and “her emails”?

Once in a while, the GOP let slip that they knew the investigations were politically motivated and not based on real crimes. McCarthy linked HRC’s dropping poll numbers to the House investigations. (She’d had high approval as Secretary of State.)

And when Ivanka and Jared used personal email accounts for White House business, nobody cared. See this and this.

The only people who actually believed HRC committed an imprisonable crime were those who fell for the ugly politics.

Now the attack is on democratic institutions themselves.

Ever since “lock her up,” the Trump-FOX-GOP has been threatening to deploy the criminal justice system as a political weapon. In March, 2018 Sen. Graham made a speech calling for an investigation of Clinton and the origins of the Steele Dossier, and the crowd broke into chants of “lock her up.”

A GOP talking point for years has been that the origins of the Mueller investigation were illegal.

Now they’re claiming Obama officials committed crimes.

During the Mueller hearings, the GOP signaled that they would respond to impeachment proceedings by opening a criminal investigation into the origins of Mueller’s investigation. That way, when the House impeaches Trump, the GOP says, “Obama did too,” and “the investigation was part of a deep state plot to destroy Trump.”

Yup, Rep. Cline, in the Mueller hearing, argued that Obama obstructed the investigation into HRC’s emails.

This is all part of a multi-faceted series of attacks on our democratic institutions.  The goal is to attack and destroy the institutions themselves by undermining them and discrediting them, to pave the way for another form of government.

How do we counter a direct attack on our institutions?

Using Harvard Prof Levitsky’s earthquake analogy: when our institutions are being shaken by a political earthquake we need to move quickly to strengthen those institutions.


Become an institutionalist.

What the heck is that? As I understand the word, it’s a person who likes institutions.

I’ll pause here to tell you that I spent my legal career criticizing many of our institutions, particularly the criminal justice system and prisons. I’ve argued in court that prosecutors over-reached, that searches were illegal, etc. In fact, I wrote this book, offering a critique of our criminal justice system:


As a progressive, my goal was to improve our institutions. Being run by mere human beings, they are flawed.

But what’s happening now is something else: A desire to destroy our institutions altogether. Apparently, in some quarters, “institutionalist” is a nasty name to call someone. I was intrigued by this criticism:

That came from someone who claims to be on the political left.

As I understand “institutions,” they include courts, agencies, norms such as prosecutorial discretion, and even family and religion. The way I understand “institutionalist” also comes from Max Weber’s three categories of authority. 

The first category is “legal-rational,” or Rule of Law, where authority is legitimized by enacted rules and regulations. The weakness is that it leads to bureaucracy. 

The second is “traditional,” legitimized by long-established cultural patterns (like a royal family.) The disadvantage of course is the the person who becomes king may be not be at all up to the task.

The third is “Charismatic Leader,” where authority is legitimized by a person’s ability to inspire devotion and obedience. 

The Trump-FOX-GOP prefers Charismatic Leader. America since its founding has attempted to create authority that is legal-rational. There has, however, always been a strain in American politics that leans toward Charismatic Leader.

Part of being a member of a healthy democracy is the freedom to criticize institutions.

When democracy is healthy, there is no harm if people say, “the entire government is corrupt” or “the criminal justice system is corrupt.”

But now, with rule of law as a system of authority under attack, talking this way helps the attackers undermine our institutions.

From Levitsky and Ziblatt: Democracy is slow, grinding work requiring compromise and give and take. Combine the grinding work of democracy with the built-in checks and balances created by the Constitution “swift decisive” actions extremely difficult and rarely possible.

Things don’t happen quickly with checks and balances and built-in bureaucracy. (Notice the “swift” comment:)

Things do, however, happen quickly in autocracies (none of those pesky checks and balances, and no need to compromise).

Hence, the appeal of autocracy.

That’s why I say: Be proud to be an institutionalist.

A follower on Twitter made this comment:

An advantage of Trump’s “emergencies” is that a Democratic president can declare a climate change emergency. The courts shot down Trump’s “emergencies” because they were not really emergencies. But climate change is. In other words, the tools are there. Trump tried to abuse the tools, but emergency measures are sometimes (but rarely) appropriate.